Very Important point
It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribed, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence.

Headnote:(i) Terrorists and Disruptive Activities (Prevention) Act, 1985-Section 3(1)(i) and 3(2)(i)-Terrorists and Disruptive Activities (Prevention) Act, 1987-Section 3 r/w Article 20(1) of Constitution of India - Death sentence - Offence committed when 1985 Act was in force-1985 Act provided for death sentence-Act expired and subsequently 1987 Act came into force which provided for alternative option to Court to impose lesser punishment of imprisonment for life -Exclusivity of extreme sentence contained in 1985 Act stands superseded by 1987 Act by virtue of Section 25 of 1987 Act-Prohibition contained in Article 20(1) of Constitution is not a bar to extend legislative benevolence to accused who awaits judicial verdict regarding sentence-Death sentence altered to imprisonment for life.
       Held : It could be discerned from Section 3(2) of the 1985 TADA that the only sentence which the sub-section permitted for awarding is death penalty in case the terrorist act resulted in the death of any person. It must be pointed out that TADA 1985 remained in force only for a period of 2 years starting from 23.5.1985. In other words, TADA 1985 expired on 22.5.1987. Instead of the statute reaching the stage of expiry by efflux of time, if it was repealed by another statute, nothing would have survived from the repealed statute unless the succeeding enactment incorporates necessary provision to the contrary. This is pithily amplified in Section 6 of the General Clauses Act. But the aforesaid legal implications of repeal of a statute cannot be applied in the case of expiry of a statute. (Para 25)
       In the expired statute i.e. TADA 1985 there is a saving clause which is embodied in Section 1(3) which mandates for a different outflow even after the expiry of the Act. The effect of operation of the above sub-section is that in spite of the expiry of TADA 1985 on 22.5.1987 all liabilities, penalties or punishments to which a person has already become liable in respect of any offence under the said Act would continue to chase him as though the said Act remains in force. Of course it is only for the limited purpose of such continuity that Parliament wanted the legal fiction to operate that the Act would still continue in force. (Paras 27 & 28)
       If the outflow of TADA 1985 had continued as such without any succeeding legislation for covering the same subjects there would not, perhaps, have been any problem. But some difficulty has been posed when TADA 1987 was enacted as its provisions substantially cover the same area as in the former legislation prescribing punishments for identical offences. In TADA 1985 (during the subsistence of which the offence in this case was committed) the extreme penalty, without any alternative, has been provided for the most serious offence under Section 3(2). But in the succeeding legislation the harshness of the sentence has been diluted for the same offence by providing an alternative option to the Court to impose. (Para 29)
        If the position was just in the reverse order i.e. the later Act contained harsher sentence and the former Act contained a lesser sentence the prohibition embodied in Article 20(1) of the Constitution that “no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence” would have come to the rescue of the offender. But the offender (who is liable to be convicted for the same offence, had it been committed after the coming into force of the subsequent TADA 1987) could have been punished with a sentence of imprisonment for life, because such an alternative is provided in that enactment. (Para 30)
       What is the jurisprudential philosophy involved in the second limb of Clause (1) of Article 20 of the Constitution? “No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.” It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribed, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence. (Para 31)
       There is inconsistency between the sentencing scope in Section 3(2) of TADA 1985 and in the corresponding provision in TADA 1987. The expression “in any enactment other than this Act” would, under Section 25, encompass even enactment which, though expired by efflux of time, continues to operate by virtue of any saving clause. Accordingly, the exclusivity of the extreme sentence contained in Section 3(2) of TADA 1985 must stand superseded by the corresponding benevolent provision in TADA 1987. It is a permissible course and the express prohibition contained in Article 20(1) of the Constitution is not a bar for resorting to the corresponding sub-section in TADA 1987. (Para 33)
       The result of the aforesaid discussion is that the Court gets jurisdiction to award the alternative sentence of imprisonment for life as for the offence under Section 3(1) of TADA 1985. On the fact situation of this case and in view of the distance of time, particularly in view of the long period of 13 years during which appellant was languishing in jail under the spell of death penalty, we are persuaded to award the lesser alternative i.e. imprisonment for life. Therefore the sentence as for the offence under Section 3(2) of TADA 1985 is altered to imprisonment for life. (Paras 34 & 35)
       (ii) Constitution of India-Article 20(1)-Ex post facto criminal law-Beneficial provision of law coming into force during trial-Subsequent legislation downgrading harshness of sentence-Legislative benevolence can be extended to accused who awaits judicial verdict regarding sentence. (Paras 31 & 33)

Judgment

Thomas, J.-The military action “Operation Blue Star” carried out in the Golden Temple complex at Amritsar had a series of aftermaths involving many horrendous incidents. In one such incident a leader of Sikh community, Sant Harchand Singh Longowal, was shot dead from close range distance on the evening of 20.8.1985. Appellant Gian Singh and 6 others were arraigned before a Designated Court under the Terrorists and Disruptive Activities (Prevention) Act, 1985 (for short “TADA 1985”) for various offences connected with the said murder. The Special Judge of the Designated Court convicted the appellant of a number of offences including Section 3(2)(i) of the TADA 1985. He was sentenced to death for the said offence as the Special Judge noticed that no other alternative sentence was prescribed for that offence under TADA 1985. However, lesser sentences were awarded for the remaining offences of which too the appellant was convicted including Section 302 read with Section 34 IPC. This appeal was filed by the appellant as of right since it is so provided under Section 16 of the TADA 1985. The remaining 6 accused in the array of the indicted persons were found not guilty of any offence and hence they were all acquitted. Two others were also shown as participants in the same offences, one Harinder Singh alias Billa (he later died on account of the bullet wounds sustained) and one Jurnail Singh (he is now a proclaimed offender as his whereabouts are still untraced).

2. As appellant has been in jail for a period exceeding 14 years in connection with this case, his learned counsel seems to be disinterested in canvassing for an acquittal. But he focussed all his efforts to have the sentence brought down to imprisonment for life for the main offence as he feels that the maximum term of fourteen years which appellant has already spent in jail would help him to get the benefit of a release order from jail authorities. But the question of sentence need be considered only if his conviction is liable to be upheld because we are dealing with the first appeal which appellant, as of right, has preferred against his conviction passed by the trial Court.

3. The facts which led to the present case can be stated in brief :

The State of Punjab was passing through a tortuous period during the first half of Nineteen Eighties. The State as a whole was then a terrorist infested area where killings of human beings with illegal firearms were a daily occurrence. Sant Harcharan Singh Longowal (hereinafter referred to as Sant Longowal) was the President of Siromani Akali Dal which was a widely represented association of the Sikh community. Another association consisting of extremists of the Sikh community had recognised one Jurnail Singh Bhindaranwale as the leader. He was supported by another extremist faction called All India Sikh Students Federation (AISSF).

4. Golden Temple at Amritsar has ever been the most revered place of worship for Sikhs all over the world. Within the Golden Temple complex is situate a multitier edifice called “Akal Takht” which is regarded as the seat of Almighty. All important decisions concerning the religious affairs of the community are being adopted at Akal Takht. It has always been eliciting obeisance from the devotees of the great temple. But during the first half of that decade a lot of extremists under the leadership of Jurnail Singh Bhindaranwale had perched inside “Akal Takht” and army action was resorted to by the Government of India, presumably, to flush out all the illegal occupants therein. The army action so resorted to is now recorded in history as “Operation Blue Star” which caused the magnificent Akal Takht to crumble down and large number of occupants therein were crushed to death. It happened in June 1984.

5. Sant Longowal was arrested soon after the aforesaid army action, and was interned in prison where he remained till 12.3.1985.

6. In the meanwhile efforts were on to mollify the wounded feel

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1999 Supreme(SC) 1026

Cases Referred (5)